1 Candler v. Crane, Christmas * Co. [1951] 2 K.B. 164, 178.

2 In practice, the action normally is brought by both parents, but this is not essential; either parent can bring the action, so long as he or she can establish a violation of a legal right giving rise to injury. Some courts, however, have raised doubts as to whether one spouse can sue in contract for wrongful birth consequent to a sterilization performed on the other spouse, the point being that the first spouse is not a party to the contract to perform the operation. See, e.g., Dalia v. Goldberg (N.Y. Sup. Ct., Queen's County 1975); Baldwin v. Sanders, 223 S.E.2d 602 (S.C. 1976).

The phrase “wrongful birth” also can be used to denote an action brought by the siblings of a child who allegedly is born as a result of the defendant's negligence. Such a claim is based upon the argument that the wrongful birth of the child represents an unplanned addition to the family, reducing the share of family income and parental attention enjoyed by the previously born siblings. This type of action has yet to meet with success, it being, in one court's opinion, “without foundation in law or logic.” Aronoff v. Snider, 292 So.2d 418 (Fla. Dist. Ct. App. 1974). See also Coleman v. Garrison, 281 A.2d 616 (Del. Super. Ct. 1971), appeal dismissed sub nom. Wilmington Medical Center, Inc. v. Coleman, 298 A.2d 320 (Del. 1972), 327 A.2d 757 (Del. Super. Ct. 1973), affd, 349 A.2d 8 (Del. 1975); Cox v. Stretton, 77 Misc. 2d 155, 352 N.Y.S.2d 834 (Sup. Ct. 1974); Speck v. Finegold, Pitt. Legal J., Sept. 1, 1976, at 253 (Pa. County Ct. 1976); Stribling v. DeQuevedo, No. 246 (Pa. Ct. C.P., Lackawanna County 1977). See generally Comment, Busting the Blessing Baloon: Liability for the Birth of an Unplanned Child, 39 Alb. L. Rev. 221 (1975)Google Scholar. In two cases, however, although siblings were not actually parties to the wrongful birth action, it has been held that, assuming the truth of the allegations, damages should be awarded, inter alia, to “replenish the family exchequer so that the new arrival will not deprive the other members of the family of what was planned as their just share of the family income.” Custodio v. Bauer, 251 Cal. App. 2d 303, 324, 59 Cal. Rptr. 463, 477 (1967); see Bowman v. Davis, 48 Ohio St. 2d 41, 356 N.E.2d 496 (1976).

3 The problems involved in the action for wrongful life fall outside the ambit of this Article. With the exception of the two recent cases of Becker v. Schwartz, 400 N.Y.S.2d 119 (App. Div. 1977) and Park v. Chessin, 400 N.Y.S.2d 110 (App. Div. 1977) (judgments delivered on the same day by the same court), such actions have not been recognized, the apparently insurmountable obstacle being that assessment of damages in such cases would involve a comparison between the plaintiffs present existence and the nebulous concept of “nonexistence,” a comparison that most courts have found impossible to perform.

Besides Becker v. Schwartz and Park v. Chessin, the present writer's research to date has revealed the following cases involving wrongful life claims: LaPoint v. Shirley, 409 F. Supp. 118 (W.D. Tex. 1976); Smith v. United States, 392 F. Supp. 654 (N.D. Ohio 1975); Stills v. Gratton, 55 Cal. App. 3d 698, 127 Cal. Rptr- 652 (1976); Foran v. Carangelo, 153 Conn. 356, 216 A.2d 638 (1966); Pinkney v. Pinkney, 198 So.2d 52 (Fla. Dist. Ct. App. 1967); Zepeda v. Zepeda, 41 Ill. App. 2d 240, 190 N.E.2d 849 (1963), cert, denied, 379 U.S. 945 (1964); Gleitman v. Cosgrove, 49 NJ. 22, 227 A.2d 689 (1967); Johnson v. Yeshiva Univ., 53 App. Div. 2d 523, 384 N.Y.S.2d 455 (1976) aff'd, 42 N.Y.2d 818, 396 N.Y.S.2d 647 (1977); Stewart v. Long Island College Hosp., 58 Misc. 2d 432, 296 N.Y.S.2d 41 (Sup. Ct. 1968), rev'd 35 App. Div. 2d 531, 313 N.Y.S.2d 502 (1970), affd, 30 N.Y.2d 695, 283 N.E.2d 616, 332 N.Y.S.2d 640 (1972); Williams v. State, 46 Misc. 2d 824, 260 N.Y.S.2d 953 (Ct. Cl. 1965), rev'd, 25 App. Div. 2d 907, 269 N.Y.S.2d 786, affd, 18 N.Y.2d 481, 223 N.E.2d 343, 276 N.Y.S.2d 885 (1966); Karlsons v. Guerinot, 394 N.Y.S.2d 933 (App. Div. 1977); Greenberg v. Kliot, 47 App. Div. 2d 765, 367 N.Y.S.2d 966, leave to appeal denied, 37 N.Y.2d 707, 374 N.Y.S.2d 1026 (1975); Clegg v. Chase, 391 N.Y.S.2d 966 (Sup. Ct. 1977); Speck v. Finegold, Pitt. Legal J., Sept. 1, 1976, at 253 (Pa. County Ct. 1976); Dumer v. St. Michael's Hosp., 69 Wis. 2d 766, 233 N.W.2d 372 (1975); Slawek v. Stroh, 62 Wis. 2d 295, 215 N.W.2d 9 (1974); Cataford v. Moreau, No. 66320 (Cour Superieure, D. Terrebonne, Montreal, Canada 1978). See generally Capron, Informed Decision-making in Genetic Counselling: A Dissent to the “Wrongful Life” Debate, 48 Ind. L.J. 581 (1973)Google Scholar; Ploscowe, An Action for “Wrongful Life,” 38 N.Y.U.L. Rev. 1078 (1963)Google Scholar; Tedeschi, On Tort Liability for “Wrongful Life,” 1 Israel L. Rev. 513 (1966)CrossRefGoogle Scholar; Note, A Cause of Action for “Wrongful Life“: [A Suggested Analysis], 55 Minn. L. Rev. 58 (1970)Google Scholar.

4 “It is questionable whether attempts to distinguish between wrongful birth and wrongful life are fruitful; such distinctions may make an already complex area of the law even more complex.” Kass * Shaw, The Risk of Birth Defects: Jacobs v. Theimer and Parents’ Right to Know, 2 AM. J. L. * Med. 213, 227 n.55 (1976-77).

5 For this reason, it may be better in practice to adopt the term “wrongful pregnancy,” see Wilmington Medical Center, Inc. v. Coleman, 327 A.2d 757, 761 (Del. Super. 1974), or “wrongful conception,” see Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn. 1977); Kashi, The Case of the Unwanted Blessing: Wrongful Life, 31 U. Miami L. Rev. 1409 (1977)Google Scholar.

6 See, e.g., Gleitman v. Cosgrove, 49 NJ. 22, 227 A.2d 689 (1967); Clegg v. Chase, 391 N.Y.S.2d 966 (Sup, Ct. 1977); Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975). The importance of this distinction was recognized in Comment, Wrongful Birth: The Emerging Status of a New Tort, 8 St. Mary's L.J. 140 (1976)Google Scholar, although the terminology used therein differs from that of the present Article. See also Stribling v. DeQuevedo, No. 246 (Pa. Ct. C.P., Lackawanna County 1977); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn. 1977).

7 These five contexts are merely the ones that have given rise to reported cases and do not represent an exhaustive list of the factual situations in which a wrongful birth action can arise. For example, negligence on the part of a physician or technician during artificial insemination that leads to the birth of a defective child could form the basis of a claim for wrongful birth. Similarly, rape cases could give rise to such a claim, and the defendant need not be the father of the child; for example, if a child is conceived through an act of rape in which X, the father, acts in concert with Y, might not the child's mother sue Y (and X) in an action for wrongful birth for, inter alia, the economic cost of rearing the child?

8 The present writer's research to date has revealed the following cases falling into this category: Pearson v. Sav-On Drugs, No. 40550 (Cal. Ct. App., L.A. County 1973); Ulfers v. Price, No. NOC 1050 (Cal. Super. Ct., L.A. County 1973); Gilliam v. French (Cal. Super. Ct., San Francisco County 1972); Maley v. Armstrong, No. 83195 (Iowa Dist. Ct., Linn County 1967); Troppi v. Scarf, 31 Mich. App. 240, 187 N.W.2d 511 (1971); Kuhns v. Pine Chemists, Inc., No. 155279-67 (N.Y. Super. Ct., Suffolk County 1972); Coloff v. Hi Ho Shopping Center, Inc., No. 168070 (Wash. Super. Ct., Pierce County 1966); Szczerbiak v. Union Precription MGMT * Fair Drugs, Inc., No. 356-463 (Wis. Cir. Ct., Milwaukee County 1969). See also Whittington v. Eli Lilly * Co., 333 F. Supp. 98 (S.D. W. Va. 1971) (dismissal of products liability action involving an alleged breach of warranty arising from the failure of oral contraceptives to prevent plaintiff from becoming pregnant).

It is suggested by Brantley, supra note 6, that the case of Jorgensen v. Meade Johnson Laboratories, 336 F. Supp. 961 (W.D. Okla. 1972), rev'd, 483 F.2d 237 (10th Cir. 1973) is one involving a wrongful birth action. The present writer believes that this suggestion is wrong. Jorgensen involved injuries to a child in utero allegedly caused by the adverse effects of oral contraceptives, but did not involve the birth of a child following the failure of contraceptives (the plaintiff in Jorgensen actually had stopped taking the pill at the time the child was conceived). Consequently, there was no allegation that but for the defendant's negligence the child would not have been born.

9 The allegation that a pregnant woman has been denied the right to choose to have an abortion can arise in several situations, including alleged failure to diagnose pregnancy, failure to inform the patient of the risks to the fetus arising from the patient's infection with a particular disease (e.g., rubella), failure to diagnose such a disease in a pregnant woman, and failure to inform the patient of the existence of tests such as amniocentesis that can detect certain defects in the fetus. The present writer's research to date has revealed the following cases falling into this category: Smith v. United States, 392 F. Supp. 654 (N.D. Ohio 1975); Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967); Johnson v. Yeshiva Univ., 53 App. Div. 2d 523, 384 N.Y.S.2d 455 (1976), aff'd, 42 N.Y.2d 818, 396 N.Y.S.2d 617 (1977); Stewart v. Long Island College Hosp., 58 Misc. 2d 432, 296 N.Y.S.2d 41 (Sup. Ct. 1968), rev'd, 35 App. Div. 2d 531, 313 N.Y.S.2d 502 (1970), affd, 30 N.Y.2d 695, 283 N.E.2d 616, 332 N.Y.S.2d 640 (1972); Debora S. v. Sapega, 392 N.Y.S.2d 79 (App. Div. 1977); Karlsons v. Guerinot, 394 N.Y.S.2d 933 (App. Div. 1977); Howard v. Lecher, 53 App. Div. 2d 420, 386 N.Y.S.2d 460 (1976), affd, 42 N.Y.2d 109, 366 N.E.2d 64, 397 N.Y.S.2d 363 (1977); Greenberg v. Kliot, 47 App. Div. 2d 765, 367 N.Y.S.2d 966, leave to appeal denied, 37 N.Y. 707, 375 N.Y.S.2d 1026 (1977), Becker v. Schwartz, 400 N.Y.S.2d 119 (App. Div. 1977); Ziemba v. Sternberg, 45 App. Div. 2d 230, 357 N.Y.S.2d 265 (1974); Chapman v. Schultz, 89 Misc. 2d 543, 383 N.Y.S.2d 512 (Sup. Ct. 1976); Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975); Dumer v. St. Michael's Hosp., 69 Wis. 2d 766, 233 N.W.2d 372 (1975); Rieck v. Medical Protective Co., 64 Wis. 2d 514, 219 N.W.2d 242 (1974). See generally Annas, * Coyne, Fitness for Birth and Reproduction: Legal Implications of Genetic Screening, 9 Fam. L.Q. 463, 474-81 (1975)Google Scholar; Friedman, Legal Implications of Amniocentesis, 123 U. Pa. L. Rev. 92, 143-55 (1974)CrossRefGoogle Scholar; Kass * Shaw, supra note 4; Note, Wrongful Birth in the Abortion Context—Critique of Existing Case Law and Proposal for Future Actions, 53 Denver L.J. 501 (1976)Google Scholar.

10 The present writer's research to date has revealed the following cases falling into this category: Stills v. Gratton, 55 Cal. App. 2d 698, 127 Cal. Rptr. 652 (1976); Cobb v. Tucker, No. 3434N (Cal. Super. Ct., San Diego County 1975); Hills v. Geathers, No. 6331374 (Cal. Super. Ct., San Francisco County 1975); Mechikoff v. Humphreys, No. 192641 (Cal. Super. Ct., Orange County 1975); Ladies Center of Clearwater Inc. v. Reno, 341 So.2d 543 (Fla. Dist. Ct. App. 1977); Speck v. Finegold, Pitt. Legal J., Sept. 1, 1976, at 253 (Pa. County Ct. 1976).

11 Park v. Chessin, 387 N.Y.S.2d 204 (Sup. Ct. 1976), affd, 400 N.Y.S.2d 110 (App. Div. 1977).

12 See Westoff, * Jones, Contraception and Sterilization in the United States, 1965-1975, 9 Fam. Plan. Perspectives 153 (1977)CrossRefGoogle Scholar; see also Westoff, Trends in Contraceptive Practice: 1965-1973, 8 Fam. Plan. Perspectives 54 (1976)CrossRefGoogle Scholar.

13 Westoff * Jones, supra note 12, at 154, Table 1. Westoff and Jones estimate that in 1975, 79 percent of continuously married white women in the United States practiced birth control. Their conclusions are based on data collected from a National Fertility Study of 3,329 such women. They remark that “blacks were reluctantly excluded from the reinterview because the original 1970 sample of blacks had serious biases and the numbers in each fiveyear marriage cohort would have been too small for many analyses.“

14 Harten v. Coons, 502 F.2d 1363 (10th Cir. 1974); LaPoint v. Shirley, 409 F. Supp. 118 (W.D. Tex. 1976); Bishop v. Byrne, 265 F. Supp. 460 (S.D. W. Va. 1967); Custodio v. Bauer, 251 Cal. App. 2d 303, 59 Cal. Rptr. 463 (1967); Bathke v. Rahn, 116 P.2d 640 (Cal. Dist. Ct. App. 1941); Herrera v. Roessing, 533 P.2d 60 (Colo. Ct. App. 1975); Foran v. Carangelo, 153 Conn. 356, 216 A.2d 638 (1966); Anonymous v. Hospital, 33 Conn. Sup. 126, 366 A.2d 204 (1976); Coleman v. Garrison, 281 A.2d 616 (Del. Super. Ct. 1971), appeal dismissed sub nom. Wilmington Med. Center, Inc. v. Coleman, 298 A.2d 320 (Del. 1972), 327 A.2d 757 (Del. Super. Ct. 1974), affd, 349 A.2d 8 (Del. 1975); Peters v. Gelb, 303 A.2d 685 (Del. Super. Ct. 1973), affd, 314 A.2d 901 (Del. 1974); Aronoff v. Snider, 292 So.2d 418 (Fla. Dist. Ct. App. 1974); Jackson v. Anderson, 230 So.2d 503 (Fla. Dist. Ct. App. 1970); Vilord v.Jenkins, 226 So.2d 245 (Fla. Dist. Ct. App. 1969); Lane v. Cohen, 201 So.2d 805 (Fla. Dist. Ct. App. 1967); Shessel v. Gay, 139 Ga. App. 429, 228 S.E.2d 361 (1976); Rogala v. Silva, 16 Ill. App. 3d 63, 305 N.E.2d 571 (1973); Doerr v. Villate, 74 Ill. App. 2d 332, 220 N.E.2d 767 (1966); Hackworth v. Hart, 474 S.W.2d 377 (Ky. 1971); Tomlinson v. Siehl, 459 S.W.2d 166 (Ky. 1970); Sard v. Hardy, 367 A.2d 525 (Md. Ct. Spec. App. 1976); Stephens v. Spiwak, 61 Mich. App. 647, 233 N.W.2d 124 (1975); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn. 1977); Martineau v. Nelson, 247 N.W.2d 409 (Minn. 1976); Christensen v. Thornby, 192 Minn. 123, 255 N.W. 620 (1934); Betancourt v. Gaylor, 136 N.J. Super. 85, 344 A.2d 336 (L. Div. 1975); Hardin v. Farris, 87 N.M. 143, 530 P.2d 407 (Ct. App. 1974); Milde v. Leigh, 28 N.W.2d 530 (N.D. 1947); Clegg v. Chase, 391 N.Y.S.2d 966 (Sup. Ct. 1977); Cox v. Stretton, 77 Misc. 2d 155, 352 N.Y.S.2d 834 (Sup. Ct. 1974); Bowman v. Davis, 48 Ohio St. 2d 41, 356 N.E.2d 496 (1976); Speck v. Finegold, Pitt. Legal J., Sept. 1, 1976, at 253 (Pa. County Ct. 1976); Shaheen v. Knight, 11 Pa. D. * C. R. 2d 41 (Lycoming County 1957); Baldwin v. Sanders, 223 S.E.2d 602 (S.C. 1976); Teeters v. Currey, 518 S.W.2d 512 (Tenn. 1974); Vaughn v. Shelton, 514 S.W.2d 870 (Tenn. Ct. App. 1974); Hays v. Hall, 477 S.W.2d 402 (Tex. Ct. Civ. App. 1972), rev'd, 488 S.W.2d 412 (Tex. 1973); Garwood v. Locke, 552 S.W.2d 892 (Tex. Ct. Civ. App. 1977); Terrell v. Garcia, 496 S.W.2d 124 (Tex. Ct. Civ. App. 1973), cert, denied, 415 U.S. 927 (1974); Ball v. Mudge, 64 Wash. 2d 247, 391 P.2d 201 (1964).

15 Neptune v. Masilyah, No. 34154 (Cal. Super. Ct., San Diego County 1975); Zaffra v. Stice, No. 30581 (Cal. Super. Ct., Yolo County 1975); Salvarino v. Nelson, No. C25436 (Cal. Super. Ct., L.A. County 1974); Walker v. Moss, No. C19428 (Cal. Super. Ct., Orange County 1974); Medinas v. Spindler, No. 415394 (Cal. Super. Ct., Alameda County 1973); Westergaard v. Turbow, No. 176001 (Cal. Super. Ct., Orange County 1973); Hoffman v. Martin (Cal. Super. Ct. L.A. County 1970); Corman v. Anderson, No. 701588 (Cal. Super. Ct., L.A. County 1960); Dalia v. Goldberg (N.Y. Sup. Ct., Queen's County 1975); Deck v. Payne, No. 20730 (Ohio Ct. C.P., Luces County 1971); Stribling v. DeQuevedo, No. 246 (Pa. Ct. C.P., Lackawanna County 1977); Nicol v. Komaniski, No. 634423 (Wash. Super. Ct., King County 1966).

16 Judgment of Jan. 31, 1974, Oberlandesgericht, 28 Neve Juristische Wochenschrift 595 (1975); anonymous West German case reported in Le Devoir (Montreal), Aug. 10, 1977, at 8, col. 2. In the latter, the plaintiff was successful. In the former, the court held that damages could be awarded for wrongful birth, but dismissed the case for failure to establish negligence on the part of the defendant.

17 Waters v. Park, 2 Brit. Med. J. 251 (1961), 2 The Lancet 204 (1961), The Times (London), July 15, 1961, at 4, col. 3 (Queen's Bench July 14, 1961); Claver v. South-West Middlesex Hosp. Management Comm., The Times (London), Jan. 24, 1972, at 2, col. 8. In Waters, the action was dismissed; the outcome of Claver is unknown to the present writer. The Medical Defence Union of England, which provides legal representation to physicians in malpractice claims, has reported dealing with a number of wrongful birth claims in England. See the Medical Defence Union Annual Reports for 1975, 1974, 1972, and 1969.

18 Colt v. Ringrose, referred to in Green, Law, Sex and the Population Explosion, 1 Legal Medical Quarterly 82, 87 (1977)Google Scholar; Cataford v. Moreau, No. 66320 (Cour Superieure, D. Terrebonne, Montreal). Judgment in the latter action was rendered on June 1, 1978 in favor of the plaintiffs, and damages totaling $2,400 were awarded. The present writer gratefully acknowledges the kind assistance of the trial judge, Mr. Justice Monet, now of the Quebec Court of Appeal, for providing access to the pleadings and judgment, and discussing some of the problems, in this case.

19 Anonymous New Zealand case referred to in Green, supra note 18, at 87.

20 In Bowman v. Davis, 48 Ohio St. 2d41,356 N.E.2d 496 (1976), an award of $450,000 was made to a woman who gave birth to twins 10 months after undergoing a tubal ligation performed by the defendant-physician. See also Deck v. Payne, No. 20730 (Ohio Ct. C.P., Luces County 1971) ($7,500); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn. 1977) ($19,500).

21 Two cases have arisen involving a claim for wrongful death of a spouse in which it was alleged that the plaintiffs wife became pregnant after a sterilization operation and subsequently died during childbirth. Both actions were partially successful. See Foran v. Carangelo, 153 Conn. 356, 216 A.2d 648 (1966); Deck v. Payne, No. 20730 (Ohio Ct. C.P., Luces County 1971).

22 For this reason, and because they are not truly “wrongful birth” examples, cases involving an alleged “wrongful pregnancy” following an unsuccessful sterilization operation but not resulting in the birth of a child have been omitted from discussion. See Blankenship v. Regents of Univ. of Cal., No. 593267 (Cal. Super. Ct., San Francisco County 1972); Dyokas v. Westlake Community Hosp., No. 74M3-11030 (Ill. Cir. Ct., Cook County 1975); Rost v. Van Rooy, No. 1355-73 (D.C. Super. Ct. 1975); Depenbrok v. Kaiser Foundation Health Plan, No. NWC38324 (Cal. Super. Ct., L.A. County 1976); Paul v. State of N.Y., 389 N.Y.S.2d 277 (Ct. Cl. 1976); Pritchard v. Neal, 139 Ga. App. 512, 229 S.E.2d 18 (1976). See also the Canadian case of Cryderman v. Ringrose, [1977] 3 W.W.R. 109 (Alta Dist. Ct.).

23 McCoid, The Care Required of Medical Practitioners, 12 Vand. L. Rev. 549, 558 (1959)Google Scholar.

24 See, e.g., Harney, Medical Malpractice 90 (1973).

25 See Penofsky, Sexual Sterilization, 21 Am. Jim. P.O.F. 255, 269, 277 (1968)Google Scholar.

26 77 Misc. 2d 155, 352 N.Y.S.2d 834 (Sup. Ct. 1974).

27 367 A.2d 525 (Md. Ct. Spec. App. 1976).

28 The author of Note, Sterilization and Family Planning: The Physician's Civil Liability, 56 Geo. L.J. 976 (1968)Google Scholar, suggests three stages of negligence, in effect combining the present writer's first and fourth stages. However, the first stage and the fourth stage involve essentially different types of conduct and therefore should be distinguished. See also Penofsky, supra note 25, at 419.

29 Penofsky, supra note 25; Hackett, * Waterhouse, Vasectomy Reviewed, 116 Am. J. Obst. Gynec. 438 (1973)CrossRefGoogle Scholar; Kaplan, * Huether, A Clinical Study of Vasectomy Failure and Recanalization, 113 J. Urology 71 (1975)CrossRefGoogle Scholar.

30 See generally Kane, Unsuccessful Sterilization Procedures, Mod. Med., March 8, 1971, at 142; Kaplan * Huether, supra note 29; Penofsky, supra note 25.

31 The prevailing view seems to be that alleged failure to make full disclosure of all material risks forms the basis of an action for malpractice, not for assault and battery. See Canterbury v. Spence, 464 F.2d 771 (1972); Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972); Sard v. Hardy, 367 A.2d 525 (Md. Ct. Spec. App. 1976); Holder, Failure to Inform Patient of Nature and Hazards of Surgery, 8 Am. Jur. P.O.F.2d 145, 170-75 (1976)Google Scholar. This fact situation may also give rise to an alternative action for breach of warranty.

32 This was an alleged ground of negligence in the cases of Cox v. Stretton, 77 Misc. 2d 155, 352 N.Y.S.2d 834 (Sup. Ct. 1974); Vaughn v. Shelton, 514 S.W.2d 870 (Tenn. Ct. App. 1974); Ball v. Mudge, 64 Wash. 2d 247, 391 P.2d 201 (1964).

33 This was an alleged ground of negligence in Custodio v. Bauer, 251 Cal. App. 2d 303, 59 Cal. Rptr. 463 (1969); Salvarino v. Nelson, No. C25436 (Cal. Super. Ct., L.A. County 1974); Westergaard v. Turbow, No. 176001 (Cal. Super. Ct., Orange County 1973); Medinas v. Spindler, No. 415394 (Cal. Super. Ct., Alameda County 1973); Hoffman v. Martin (Cal. Super. Ct., L.A. County 1970); Coleman v. Garrison, 281 A.2d 616 (Del. Super. 1971), appeal dismissed sub nom. Wilmington Med. Center, Inc. v. Coleman, 298 A.2d 320 (Del. 1972), 327 A.2d 757 (Del. Super. 1974), affd, 349 A.2d 8 (Del. 1975); Sard v. Hardy, 367 A.2d 525 (Md. Ct. Spec. App. 1976); Cox v. Stretton, 77 Misc. 2d 155, 352 N.Y.S.2d 834 (Sup. Ct. 1974); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn. 1977); Garwood v. Locke, 552 S.W.2d 892 (Tex. Ct. Civ. App. 1977).

34 Sec, e.g.. Holder, supra note 31, at 156-61.

35 464F.2d771 (1972).

36 The reason for undergoing a sterilization operation (except in certain cases of therapeutic hysterectomy) is always the desire to be rendered sterile. The variable factor is the reason underlying that desire, e.g., the fear of bearing a defective child, the fear of risk to the health of the mother attendant to childbirth, the decision not to increase the size of the family.

37 367 A.2d 525 (Md. Ct. Spec. App. 1976), rev'd, 379 A.2d 1014 (1977).

38 367 A.2d at 535.

39 This was an alleged ground of negligence in Harten v. Coons, 502 A.2d 1363 (10th Cir. 1974); LaPoint v. Shirley, 409 F. Supp. 118 (W. D. Tex. 1976); Bishop v. Byrne, 265 F. Supp. 460 (S.D. W. Va. 1967); Custodio v. Bauer, 251 Cal. App. 2d 303, 59 Cal. Rptr. 463 (1967); Neptune v. Masilyah, No. 341454 (Cal. Super. Ct., San Diego County 1975); Salvarino v. Nelson, No. C25436 (Cal. Super. Ct., L.A. County 1974); Walker v. Moss, No. C19428 (Cal. Super. Ct., Orange County 1974); Medinas v. Spindler, No. 415394 (Cal. Super. Ct., Alameda County 1973); Westergaard v. Turbow, No. 176001 (Cal. Super. Ct., Orange County 1973); Anonymous v. Hospital, 33 Conn. Sup. 126, 366 A.2d 204 (1976); Coleman v. Garrison, 281 A.2d 616 (Del. Super. Ct. 1971), appeal dismissed sub nom. Wilmington Med. Center, Inc. v. Coleman, 298 A.2d 320 (Del. 1972), 327 A.2d 757 (Del. Super. Ct. 1974), affd, 349 A.2d 8 (Del. 1975); Peters v. Gelb, 303 A.2d 685 (Del. Super. Ct. 1973), affd, 314 A.2d 901 (Del. 1974); Vilord v. Jenkins, 226 So.2d 245 (Fla. Dist. Ct. App. 1969); Lane v. Cohen, 201 So.2d 805 (Fla. Dist. Ct. App. 1967); Tomlinson v. Siehl, 459 S.W.2d 166 (Ky. 1970); Sard v. Hardy, 367 A.2d 525 (Md. Ct. Spec. App. 1976); Stephens v. Spiwak, 61 Mich. App. 647, 233 N.W.2d 124 (1975); Martineau v. Nelson, 247 N.W.2d 409 (Minn. 1976); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn. 1977); Milde v. Leigh, 28 N.W.2d 530 (N.D. 1947); Cox v. Stretton, 77 Misc. 2d 155, 352 N.Y.S.2d 834 (Sup. Ct. 1974); Bowman v. Davis, 48 Ohio St. 2d 41, 356 N.E.2d 496 (1976); Teeters v. Currey, 518 S.W.2d 512 (Tenn. 1974); Vaughn v. Shelton, 514 S.W.2d 870 (Tenn. App. 1974); Garwood v. Locke, 552 S.W.2d 892 (Tex. Ct. Civ. App. 1977); Terrell v. Garcia, 496 S.W.2d 124 (Tex. Ct. Civ. App. 1973), cert, denied, 415 U.S. 927 (1974).

40 However, postoperative tests might indicate that the material removed by the physician was not part of the fallopian tubes or the vas defevens.

41 See Coleman v. Garrison, 327 A.2d 757, 762 (Del. Super. Ct. 1974); Note, supra note 28, at 986; Note, Elective Sterilization, 113 U. Pa. L. Rev. 415, 436 (1975)Google Scholar. The effect of the application of the res ipsa loquitur rule of evidence is that a presumption exists that the defendant has been negligent, and the onus is placed on the defendant to rebut this presumption—at least in some jurisdictions.

42 64 Wash. 2d 247, 391 P.2d 201 (1964).

43 “Medical literature indicates that it would be quite unreasonable for a doctor to fail to do post-operative testing (following a sterilization operation).” Note, supra note 28, at 986.

44 This was an alleged ground of negligence in Sard v. Hardy, 367 A.2d 525 (Md. Ct. Spec. App. 1976); Cox v. Stretton, 77 Misc. 2d 155, 352 N.Y.S.2d 834 (Sup. Ct. 1974); Ball v. Mudge, 64 Wash. 2d 247, 391 P.2d 201 (1964).

45 This was an alleged ground of negligence in Harten v. Coons, 502 F.2d 1363 (10th Cir. 1974); Salvarino v. Nelson, No. C25436 (Cal. Super. Ct., L.A. County 1974); Walker v. Moss, No. C19428 (Cal. Super. Ct., Orange County 1974); Hackworth v. Hart, 474 S.W.2d 377 (Ky. 1971); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn. 1977); Hardin v. Farris, 87 N.M. 143, 530 P.2d 407 (Ct. App. 1974); Bowman v. Davis, 48 Ohio St. 2d 41, 356 N.E.2d 496 (1976); Hays v. Hall, 477 S.W.2d 402 (Tex. Ct. Civ. App. 1972), rev'd, 488 S.W.2d 412 (Tex. 1973). If t he physician deliberately were to withhold this information from the patient this would give rise to a possible cause of action for fraudulent concealment. See Harney, supra note 22, at 16.

46 This was an alleged ground of negligence in Custodio v. Bauer, 251 Cal. App. 2d 303, 59 Cal. Rptr. 463 (1967); Bathke v. Rahn, 116 P.2d 640 (Cal. Dist. Ct. App. 1941); Lane v. Cohen, 201 So.2d 805 (Fla. Ct. App. 1967); Sard v. Hardy, 367 A.2d 525 (Md. Ct. Spec. App. 1976); Milde v. Leigh, 28 N.W.2d 530 (N.D. 1947); Cox v. Stretton, 77 Misc. 2d 155, 352 N.Y.S.2d 834 (Sup. Ct. 1974); Speck v. Finegold, Pitt. Legal J., Sept. 1, 1976, at 253 (Pa. County Ct. 1976); Stribling v. DeQuevedo, No. 246 (Pa. Ct. C.P., Lackawanna County 1977); Hays v. Hall, 477 S.W.2d 402 (Tex. Ct. Civ. App. 1972), rev'd, 488 S.W.2d 412 (Tex. 1973); Ball v. Mudge, 64 Wash. 2d 247, 391 P.2d 201 (1964).

47 251 Cal. App. 2d 303, 59 Cal. Rptr. 463 (1967). This was also an alleged ground of negligence in the case of Neptune v. Masilyah, No. 341454 (Cal. Super. Ct., San Diego County 1975) (recovery denied by jury).

48 The observation does not apply to cases involving female sterilization, since, in such cases, postoperative testing does not necessarily ensure that every error will be discovered, nor does it indicate the occurrence of recanalization. However, the observation will apply to such cases if in fact negligent performance of the operation is detected during postoperative tests. Similarly, the observation will not apply in the small number of vasectomy cases involving negligent performance that is not revealed during postoperative tests.

49 See, e.g., Harney, supra note 24, at 243. The present writer also feels that this situation is one of “assumption of risk” and not merely one of “contributory (or comparative) negligence,” and thus constitutes a complete defense to plaintiffs claim and not merely a ground for reduction of damages.

50 See, however, the discussion of t he question of proximate cause with regard to t he birth of a defective child following an unsuccessful sterilization operation in LaPoint v. Shirley, 409 F. Supp. 118 (W.D. Tex. 1976). The judgment of the court in that case is manifestly erroneous.

51 “It is difficult to conceive how the very act the consequences of which the operation was designed to forestall, can be considered as unforeseeable.” Custodio v. Bauer, 251 Cal. App. 2d 303, 316-17, 59 Cal. Rptr. 463, 472 (1967).

52 See, however, Jones v. Smith, a sterilization-wrongful-birth mock case performed by members of the American Society of Law 8c Medicine (a transcript of which is available at the Boston University Medical Center) in which this defense was raised.

53 See, e.g., Tosh v. Tosh, 29 Cal. Rptr. 613 (Cal. Ct. App. 1963); Whitman v. Whitman, 215 N.E.2d 689 (Ind. Ct. App. 1966); Cochran v. Cochran, 2 Wash. App. 514, 468 P.2d 729 (1970); L. v. M., 134 N.J. Super. 69 (1975). But see S. v. S., 520 S.W.2d 652 (Mo. Ct. App. 1975).

54 Bishop v. Byrne, 265 F. Supp. 460 (S.D. W. Va. 1967); Custodio v. Bauer, 251 Cal. App. 2d 303, 59 Cal. Rptr. 463 (1967); Salvarino v. Nelson, No. C25436 (Cal. Super. Ct., L.A. County 1974); Hoffman v. Martin (Cal. Super. Ct., L.A. County 1970); Herrera v. Roessing, 533 P.2d 60 (Colo. Ct. App. 1975); Coleman v. Garrison, 281 A.2d 616 (Del. Super. Ct. 1971), appeal dismissed sub nom. Wilmington Med. Center, Inc. v. Coleman, 298 A.2d 320 (Del. 1972), 327 A.2d 757 (Del. Super. Ct. 1974), affd, 349 A.2d 8 (Del. 1975); Jackson v. Anderson, 230 So.2d 503 (Fla. Dist. Ct. App. 1970); Vilord v. Jenkins, 226 So.2d 245 (Fla. Dist. Ct. App. 1969); Lane v. Cohen, 201 So.2d 805 (Fla. Dist. Ct. App. 1967); Rogala v. Silva, 16 Ill. App. 3d 63, 305 N.E.2d 571 (1973); Doerr v. Villate, 74 Ill. App. 2d 332, 220 N.E.2d 767 (1966); Hackworth v. Hart, 474 S.W.2d 377 (Ky. 1971); Sard v. Hardy, 367 A.2d 525 (Md. Ct. Spec. App. 1976); Stephens v. Spiwak, 61 Mich. App. 647, 233 N.W.2d 124 (1975); Martineau v. Nelson, 247 N.W.2d 409 (Minn. 1976); Clegg v. Chase, 391 N.Y.S.2d 966 (Sup. Ct. 1977); Cox v. Stretton, 77 Misc. 2d 155, 352 N.Y.S.2d 834 (Sup. Ct. 1974); Shaheen v. Knight, 11 Pa. D. * C. R. 2d 41 (Lycoming County 1957); Ball v. Mudge, 64 Wash. 2d 247, 391 P.2d 201 (1964).

Moreover, in cases in which the physician is alleged to have performed the operation negligently, the claim may in some jurisdictions be founded in contract, based on the implied condition to exercise reasonable skill. See, e.g., Doerr v. Villate, 74 Ill. App. 2d 332, 220 N.E.2d 767 (1966); Dalia v. Goldberg (N.Y. Sup. Ct., Queen's County 1975); Baldwin v. Sanders, 223 S.E.2d 602 (S.C. 1976). In most jurisdictions, however, such a claim must be founded in tort. See Note, Establishing the Contractual Liability of Physicians, 7 U. Cal. Dav. L. Rev. 84 (1974)Google Scholar.

55 It should be noted, however, that an allegation of first stage negligence would be irrelevant in a wrongful birth tort action involving vasectomy. See p. 143, supra. Such allegations might also substantiate an action for negligent (or fraudulent) misrepresentation, although the chance of success of such a claim certainly is open to question. See Custodio v. Bauer, 251 Cal. App. 2d 303, 59 Cal. Rptr. 463 (1967); Hoffman v. Martin (Cal. Super. Ct., L.A. County 1970); Coleman v. Garrison, 281 A.2d 616 (Del. Super. Ct. 1971), appeal dismissed sub nom. Wilmington Med. Center, Inc. v. Coleman, 298 A.2d 320 (Del. 1972), 327 A.2d 757 (Del. Super. Ct. 1974), off ‘d, 349 A.2d 8 (Del. 1975); Christensen v. Thornby, 192 Minn. 123, 255 N.W. 620 (1934).

56 See, e.g., Bishop v. Bryne, 265 F. Supp. 460 (S.D. W. Va. 1967); Custodio v. Bauer, 251 Cal. App. 2d 303, 59 Cal. Rptr. 463 (1967); Hackworth v. Hart, 474 S.W.2d 377 (Ky. 1971); Tomlinson v. Siehl, 459 S.W.2d 166 (Ky. 1970); Milde v. Leigh, 28 N.W.2d 530 (N.D. 1947); Teeters v. Currey, 518 S.W.2d 512 (Tenn. 1974); Hays v. Hall, 477 S.W.2d 402 (Tex. Ct. Civ. App. 1972), rev'd, 488 S.W.2d 412 (Tex. 1973). But see Dalia v. Goldberg (N.Y. Sup. Ct., Queen's County 1975); Cox v. Stretton, 77 Misc. 2d 155, 352 N.Y.S.2d 834 (Sup. Ct. 1974).

57 See Holder, Physician's Guarantee of Medical Results, 4 Am. Jur. P.O.F.2d 333, 340 (1975)Google Scholar; Note, supra note 54, at 91.

58 See, e.g., Georgia Voluntary Sterilization Act of 1970, Ga. Code Ann. §84-392, which led to the dismissal of the contractual action in Shessel v. Gay, 139 Ga. App. 429, 228 S.E.2d 361 (1976). For other such legislation, see U.S. Dep't of Health, Education, and Welfare, Family Planning: An Analysis of Law and Policies in the United States (1974).

59 See, e.g., Bishop v. Byrne, 265 F. Supp. 460 (S.D. W. Va. 1967); Peters v. Gelb, 303 A.2d 685 (Del. Super. Ct. 1973), off'd, 314 A.2d 901 (Del. 1974); Lane v. Cohen, 201 So.2d 805 (Fla. Dist. Ct. App. 1967).

60 As pointed out in Note, supra note 54, at 107, the case of Custodio v. Bauer, 251 Cal. App. 2d 303, 59 Cal. Rptr. 463 (1967), seems to suggest that failure to inform the patient of the risk that the operation will be unsuccessful may constitute an implied warranty that the operation will be effective. However, the court in Custodio apparently overlooked the fact that the complaint alleged a breach of the implied condition to exercise reasonable skill and not a breach of implied warranty as to the success of the operation, thus seemingly confusing the two concepts.

61 See, e.g., Forms 202:125 and 202:126 in 15 Am. Jur. Lecal Forms 2d 78 (1973); Chaset, Vasectomy, 1972 Med. Trial Tech. Q. 170, 172 (1972)Google Scholar.

62 See, e.g., Herrera v. Roessing, 533 P.2d 60 (Colo. Ct. App. 1975); Sard v. Hardy, 367 A.2d 525 (Md. Ct. Spec. App. 1976).

63 'See, e.g., Coleman v. Garrison, 281 A.2d 616, (Del. Super. Ct. 1971), appeal dismissed sub nom. Wilmington Med. Center, Inc. v. Coleman, 298 A.2d 320 (Del. 1972), 327 A.2d 757 (Del. Super. Ct. 1974), affd, 349 A.2d 8 (Del. 1975); Rogala v. Silva, 16 Ill. App. 3d 63, 305 N.E.2d 571 (1973); Clegg v. Chase, 391 N.Y.S.2d 966 (Sup. Ct. 1977). But see Sard v. Hardy, 367 A.2d 525 (Md. Ct. Spec. App. 1976), implying the contrary.

64 Comment, Liability for Failure of Birth Control Methods, 76 Colum. L. Rev. 1187, 1188 n.ll (1976).

65 See Shaw, Recovery Against Physicians on Basis of Breach of Contract to Achieve Particular Result or Cure, Annot., 43 A.L.R.3d 1221, 1233 n.12 (1972).

66 This Part applies both to actions in tort and to actions in contract.

67 49 NJ. 22, 227 A.2d 689 (1967).

68 The problems involved in the assessment of damages, and considerations of public policy, are, to a very large extent, common to all the fact situations involving wrongful birth.

69 Gleitman v. Cosgrove, 49 NJ. 22, 29, 227 A.2d 689, 693 (1967). See also Coleman v. Garrison, 281 A.2d 616 (Del. Super. 197'1), appeal dismissed sub nom. Wilmington Med. Center, Inc. v. Coleman, 298 A.2d 320 (Del. 1972), 327 A.2d 757 (Del. Super. Ct. 1974), affd, 349 A.2d 8 (Del. 1975); Stewart v. Long Island College Hosp., 58 Misc. 2d 432, 296 N.Y.S.2d 41 (Sup. Ct. 1968), rev'd, 35 App. Div. 2d 531, 313 N.Y.S.2d 502 (1970), affd 30 N.Y.2d 695, 283 N.E.2d 616, 332 N.Y.S.2d 640 (1972); Howard v. Lecher, 53 App. Div. 2d 420, 386 N.Y.S.2d 460 (1976), affd, 42 N.Y.2d 109, 366 N.E.2d 64, 397 N.Y.S.2d 363 (1977).

70 Troppi v. Scarf, 31 Mich. App. 240, 187 N.W.2d 511 (1971); Terrell v. Garcia, 496 S.W.2d 124 (Tex. Ct. Civ. App. 1973), cert, denied, 415 U.S. 927 (1974).

71 This contradiction is pointed out in Note, Damages—Negligently Filled Prescription for Birth Control Pills Results in Recovery for Birth of Normal Child, 40 U. Mo. Kan. City L. Rev. 264, 274-77 (1972)Google Scholar.

72 Szczerbiak v. Union Prescription MGMT * Fair Drugs Inc., No. 356-463 (Wis. Cir. Ct., Milwaukee County 1969).

73 See, e.g., Coleman v. Garrison, 327 A.2d 757, 761 (Del. Super. Ct. 1973); Maley v. Armstrong, No. 83195 (Iowa Dist. Ct., Linn County 1967); Sherlock v. Stillwater Clinic, 260 N.W.2d 169, 177 (Minn. 1977) (dissent); Shaheen v. Knight, 11 Pa. D. * C. R. 2d 41 (Lycoming County 1957).

74 496 S.W.2d 124 (Tex. Ct. Civ. App. 1973), cert, denied, 415 U.S. 927 (1974).

75 496 S.W.2d at 128.

76 See, e.g., Custodio v. Bauer, 251 Cal. App. 2d 303, 59 Cal. Rptr. 463, 476 (1967); Coleman v. Garrison, 281 A.2d 616 (Del. Super. Ct. 1971), appeal dismissed sub nom. Wilmington Med. Center, Inc. v. Coleman, 298 A.2d 320 (Del. 1972), 327 A.2d 757 (Del. Super. Ct. 1974, affd, 349 A.2d 8 (Del. 1975); Terrell v. Garcia, 496 S.W.2d 124 (Tex. Ct. Civ. App. 1973), cert, denied, 415 U.S. 927 (1974). See Comment, supra note 2, at 226.

77 “Where the defendant's tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred upon the plaintiff a special benefit to the interest which was harmed, the value of the benefit conferred is consideration in mitigation of damages, where this is equitable.” Restatement of Torts § 920 (1939).

78 281 A.2d 616 (Del. Super. Ct. 1971), appeal dismissed sub nom. Wilmington Med. Center Inc. v. Coleman, 298 A.2d 320 (Del. 1972), 327 A.2d 757 (Del. Super. Ct. 1974), affd, 349 A.2d 8 (Del. 1975).

79 31 Mich. App. 240, 187 N.W.2d 511 (1971).

80 381 U.S. 479 (1965).

81 Comment, supra note 2, at 226.

82 11 Pa. D. * C. R. 2d 41 (Lycoming County 1957).

83 No. 356-463 (Wis. Cir. Ct., Milwaukee County 1969). See also Speck v. Finegold, Pitt. Legal J., Sept. 1, 1976, at 253, 264 (Pa. County Ct. 1976).

84 Shaheen v. Knight, 11 Pa. D. * C. R. 2d 41, 45 (Lycoming County 1957).

85 Szczerbiak v. Union Prescription MGMT * Fair Drugs, Inc., No. 356-463, unreported judgment at 4 (Wis. Cir. Ct., Milwaukee County 1969).

86 Terrell v. Garcia, 496 S.W.2d 124, 131 (Tex. Ct. Civ. App. 1973).

87 In several wrongful birth cases involving the birth of a defective child, courts have held that the parent (if proof of the allegations is made) is entitled to recover only the difference between the cost of raising the defective child and the cost of raising a normal child. See, e.g., Debora S. v. Sapega, 392 N.Y.S.2d 79 (App. Div. 1977); Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975); Dumer v. St. Michael's Hosp., 69 Wis. 2d 766, 233 N.W.2d 372 (1975).

The legal basis for this approach is questionable. Such an award attempts to place the plaintiff in the economic position he or she would have been in had the child been born normal, despite the fact that the gravamen of the plaintiffs claim is that but for the defendant's negligence the child would not have been born at all.

88 Those tens of millions of persons, by their conduct, express the sense of the community.” Troppi v. Scarf, 31 Mich. App. 240, 253, 187 N.W.2d 511, 517 (1971).

89 31 Mich. App. 240, 187 N.W.2d 511 (1971).

90 See, e.g., Anonymous v. Hospital, 33 Conn. Sup. 126, 366 A.2d 204 (1976); Stephens v. Spiwak, 61 Mich. App. 647, 233 N.W.2d 124 (1975); Betancourt v. Gaylor, 136 N.J. Super. 85, 344 A.2d 336 (L. Div. 1975); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn. 1977).

91 See, e.g., Comment, supra note 2, at 230 (subjective test); Note, supra note 28, at 994-95 (objective test).

92 Pearson v. Sav-On Drugs, No. 40550 (Cal. Ct. App., L.A. County 1973). The evidence of expert economists was also used in this regard by plaintiff and defendant in Cataford v. Moreau, No. 66320 (Cour Superieure, D. Terrebonne, Montreal, Canada 1978); see Goss, Strict Liability: A “Lady in Waiting” for Wrongful Birth Cases, 11 Calif. W. L. Rev. 136, 139, n.22 (1974).

93 Bryan, Damages—The Not So “Blessed Event,” 46 N.C. L. Rev. 948, 952 (1968)Google Scholar. See also Note, The Birth of a Child Following an Ineffective Sterilization Operation as Legal Damage, 9 Utah L. Rev. 808, 811-12 (1965)Google Scholar. Contra, Custodio v. Bauer, 251 Cal. App. 2d 303, 324-25, 59 Cal. Rptr. 463, 477 (1967).

94 No. 66320 (Cour Superieure, D. Terrebonne, Montreal 1978). It is of interest to note the unexpected outcome of the court's direction in Cataford. A guardian ad litem was duly appointed on behalf of the child and claimed $20,000 on behalf of the child in a wrongful life action. This claim was dismissed by t he court.

95 “The plaintiff who is injured by actionable conduct of the defendant is ordinarily denied recovery for any item of special damages he could have avoided by reasonable acts.” Dobbs, Handbook on the Law of Remedies 186 (1973).

96 45 App. Div. 2d 230, 234, 357 N.Y.S.2d 265, 270 (1974) (Cardamone and Mahoney, JJ., dissenting).

97 “Many people would be willing to support this child were they given the right of custody and adoption, but according to plaintiffs statement, plaintiff does not want such. He wants to have the child and wants the doctor to support it.” Shaheen v. Knight, 11 Pa. D. * C. R. 2d 41 (Lycoming County 1957).

This relates, not to the question of mitigation of damages, but to what the court in Shaheen and in several other cases regarded as a rule of public policy, namely, that the plaintiff should not be allowed to transfer the cost of raising the child to the defendant while himself retaining the “fun, joy and affection” arising from custody of the child. See also Coleman v. Garrison, 281 A.2d 616 (Del. Super. Ct. 1971), appeal dismissed sub nom. Wilmington Med. Center, Inc. v. Coleman, 298 A.2d 320 (Del. 1972), 327 A.2d 757 (Del. Super. Ct. 1974), affd, 349 A.2d 8 (Del. 1975); Maley v. Armstrong, No. 83195 (Iowa Dist. Ct., Linn County 1977); Ziemba v. Sternberg, 45 App. Div. 2d 230, 357 N.Y.S.2d 265 (1974); Hays v. Hall, 577 S.W.2d 402 (Tex. Ct. Civ. App. 1972), rev'd, 488 S.W.2d 412 (Tex. 1973); Rieck v. Medical Protective Co., 64 Wis. 2d 514, 219 N.W.2d 242 (1974).

98 “The jury may well have concluded that appellants suffered no damage in the birth of a normal, healthy child, whom they dearly love, would not consider placing for adoption, and would not sell for $50,000.” Ball v. Mudge, 64 Wash. 2d 247, 391 P.2d 201 (1964).

This relates, not to the question of mitigation of damages, but to the somewhat tenuous implication that, since the child has not been placed for adoption, it must be loved and cared for and that consequently the parents have suffered no loss or damage. See Mark, supra note 64, at 1203, n.89.

99 See, e.g., Note, Unwanted Pregnancy and the Pill—The Question of Liability of the Manufacturer, 41 U. Cin. L. Rev. 335, 352-53 (1972)Google Scholar; Note, Misfeasance in the Pharmacy: A Bundle of “Fun, Joy and Affection“? 8 Calif. West. L. Rev. 341, 342 n.6 (1972)Google Scholar; Note, Unplanned Parenthood and the Benefit Rule, 8 Wake Forest L. Rev. 159, 163 (1972)Google Scholar; 38 Brooklyn L. Rev. 531, 533 (1971). See also Troppi v. Scarf, 31 Mich. App. 240, 187 N.W.2d 511 (1971).

100 See, e.g., Troppi v. Scarf, id.; Martineau v. Nelson, 247 N.W.2d 409 (Minn. 1976); Ziemba v. Sternberg, 45 App. Div. 2d 230, 357 N.Y.S.2d 265 (1974).

101 Note, Torts—Contraception—Determination of Damages for the Negligent Dispensing of an Oral Contraceptive Resulting in the Birth of an Unwanted Child, 18 Wayne L. Rev. 1221, 1234 (1972)Google Scholar; see also Sagall, Medical-Legal Implications of Sterilization Operations, in 1973 Legal Medicine Annual 447 (C. Wecht ed. 1973).

102 See, e.g., Neptune v. Masilyah, No. 341454 (Cal. Super. Ct., San Diego County 1974); Zaffra v. Stice, No. 30581 (Cal. Super. Ct., Yolo County 1975); Salvarino v. Nelson, No. C25436 (Cal. Super. Ct., L.A. County 1974); Walker v. Moss, No. C19428 (Cal. Super. Ct., Orange County 1974); Medinas v. Spindler, No. 415394 (Cal. Super. Ct., Alameda County 1973); Westergaard v. Turbow, No. 176001 (Cal. Super. Ct., Orange County 1973); Hoffman v. Martin, (Cal. Super. Ct., L.A. County 1970).